Stiffed by an airline or booking agency? Take 'em to court

By Justin Moyer, The Washington Post

Posted:
07/02/2013 03:55:18 PM EDT

A jet takes off from Sky Harbor International Airport, Friday, June 28, 2013 in Phoenix. (AP Photo/Matt York)

Nov. 22 — Thanksgiving Day — seemed like a good day for my band to fly from Washington to Germany for our fall 2012 European tour. Sure, we'd miss Thanksgiving with our families. But flying on the holiday was cheaper than flying the day before or the day after, and we'd be able to start our trip with a solid show in Berlin on a Friday.

But when we got to a suspiciously deserted Dulles International Airport in Virginia on Turkey Day, we learned that there was no flight to check in for. Delta, which had already rescheduled our party to depart on Black Friday, said that our flight had been canceled weeks earlier. Hadn't we heard from the online booking agency that had sold us our tickets?

We had not. And when we called that agency's customer service hotline, we were told Delta was responsible for scheduling changes. Our airline and our online travel agency blamed each other for the mistake as the few remaining Europe-bound flights departing the East Coast on Thanksgiving evening took off across the Atlantic. Neither would refund the cost of our tickets nor pay for a hotel room or for transportation back to Washington.

Unwilling to pay thousands more for seats on a Turkish Airlines flight to Berlin with a connection in Istanbul, we were out of options. Defeated, we paid for a rental car so that we could go home, sleep, catch a Black Friday screening of "Lincoln" and return to Dulles the next night.

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We didn't just miss our show in Berlin. We missed cranberry sauce from a can.

After the tour, I filed a complaint with the Department of Transportation. Figuring that I was more likely to hear back from Santa Claus, I also called Dan Paci, my attorney in Pennsylvania, to discuss filing a lawsuit, but his triple-digit hourly fees would have devoured much of any judgment I might win.

"You get out in the real world and the practical component of a legal issue just overwhelms the real answer," said Paci, a partner at Grim, Biehn and Thatcher in Perkasie, Pa. "The abstract legal issue and the law school exam answer have nothing to do with the settlement. It's almost entirely a matter of economics. Who is willing to bluff? Who is willing to stretch it out the longest?"

There was a cheaper option: small claims court. The DOT even recommends it.

"There are instances where passengers might file a complaint in small claims court if they believe an airline's actions have caused them financial harm," wrote Bill Mosley, an agency spokesman, in an e-mail. Though rules adopted under the Obama administration can force airlines to compensate passengers when luggage is lost or delayed or when they are involuntarily bumped from flights, the DOT does not have "the authority to require compensation for other types of passenger inconvenience, such as for delayed or canceled flights, and DOT itself cannot compensate passengers directly," Mosley wrote.

Luckily, the DOT Web site has a handy consumer guide for navigating small claims — something consumers will probably have to take on alone should they choose to file suit.

"The purpose of small claims court is for people to be pro se," or without a lawyer, said Nakia Waggoner, managing attorney at the Neighborhood Legal Services Program, a nonprofit that staffs an information center in small claims court in Washington, D.C. Waggoner said that for those able to use it, the court can work better than filing a traditional lawsuit.

Moreover, the justice system's harsh economics might work in favor of an Internet-savvy white-collar worker who's able to take long lunch breaks and eloquently tell a sob story. If I filed pro se, would a major corporation bother paying a slick litigator to battle the disgruntled guitarist of an obscure rock group? D.C. small claims court had more than 10,000 cases in 2012. More than a quarter were settled or dismissed, and more than 1,000 resulted in a default judgment. There was a decent chance that I'd win easily when my opponent didn't show up.

Emboldened, I filed a small claim against the discount ticketing Web site for $4,924.88. This would cover the cost of my flights, the rental car plus gas and lost revenue from the canceled Berlin show. And, since the maximum small claim in the District is $5,000, I couldn't ask for much more.

Filing was relatively easy: I gathered my receipts, filled out a form, paid $56.50 and got a court date less than a month away. The hardest part was figuring out the correct mailing address for the company I was suing. More than 20 percent of D.C. small claims filed last year were dismissed for bad service — a plaintiff's failure to tell the court the right place to deliver a complaint.

— — —

I was contemplating wardrobe choices for my court appearance a few days before my date with justice when the online agency's in-house counsel called. After some intimidating phone calls — conversations with a real lawyer made me realize that I was no Perry Mason — we settled for $1,000.

I call this a win. Whereas prevailing in small claims court is no guarantee that a defendant will pay promptly, I had a check in my hand within a week. As a traveling musician, I've been pushed around by discount ticket retailers with intractable fine print and airlines with unreasonable excess baggage fees for more than a decade. Using the judicial branch, I'd made the company that refused to right its wrong pay attention, and I'd recovered 20 percent of my travel budget.

If more air travelers used small claims instead of looking to our toothless "Passenger Bill of Rights," wouldn't airlines and discount ticket retailers have to improve?

Maybe not. Flush from my win, I tried suing Delta, which I considered equally culpable for the Thanksgiving debacle, in January. When the company didn't respond, I thought I'd easily win a summary judgment. Weeks later, a small claims judge made it clear that I'd thought wrong.

The problem? I hadn't paid Delta for my tickets — I'd paid the online company I'd already settled with. Since I hadn't given Delta my money, it didn't owe me any unless I tried to prove emotional distress. This isn't easy.

"If you wanted to assert pain and suffering or intentional affliction of emotional distress, you can, but you have a challenge proving them," said Faith Mullen, a law professor at Catholic University's Columbus School of Law whose students sometimes staff the small claims assistance center. Paying a psychiatrist to testify about, say, my paralyzing fear of booking future Delta flights isn't convenient or cost-effective when seeking limited damages. "Because small claims are often self-represented, I think it's harder," Mullen said.

In Round 2, I'd fought authority, and authority had won without even throwing a punch. Really, I'd been lucky there'd been a second round at all. In the fast-paced world of small claims, plaintiffs who assume that a court will be sympathetic may be disappointed.

"Their understanding of the legal process is based almost entirely on 'Judge Judy,' " Paci said. "They think they can go in front of a judge like her and explain their case and they'll win because they are on the side of truth, justice and beauty. That's not the way it works."

Sure, truth, justice and beauty might be too much to ask. But given the choice to plead my case before a judge or an airline customer service representative, I'll take the judge every time.

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